Are attorney fees in California probate based on the gross or net estate is a question I am often asked. The law is clear that it is the gross assets.  Let’s dive into this deeper though as attorney fees in probate should be understood if you are dealing with a California probate case.

Please remember I have a probate fee calculator on my website to help you estimate what the attorney fee and the executor fees should be in a California probate. That can be found on my webpage at this link.

First of all what is gross and what is net even mean?

Gross is the total, without deductions, before liabilities, taxes, mortgages, etc…. In other words it is the highest number.

Net is the remainder after deductions, after liabilities, taxes, mortgages, etc…. In other words it’s the actual “equity” or balance of the probate estate to distribute.

Attorney fees and executor or administrator fees ARE BASED ON THE GROSS ESTATE.

For example, if the estate has a house worth \$500,000 with a mortgage of \$200,000 the gross estate is \$500,000 and the net estate is \$300,000.  The attorney and executor fees, in probate, would be based on the \$500,000 value.

As a reminder the calculation of fees in a California probate is as follows:

4% of the first \$100,000

3% of the next \$100,000

2% of the next \$800,000

1% of the next \$9,000,000

.5% of the next \$15,000,000

Judicial discretion above \$25,000,000 (that’s RARE). As California probate code 10810 says, “For all amounts above twenty-five million dollars (\$25,000,000), a reasonable amount to be determined by the court.”  Again, that’s rare but if you have a case of that size I would love to talk to you about it!

So, in our hypothetical of a \$500,000 probate the fees would be calculated as follows:

4% of the first \$100,000 = \$4,000

3% of the next \$100,000 = \$3,000

2% of the next \$300,000 = \$6,000

Total attorney fee = \$13,000

Total executor, administrator or personal representative fee = \$13,000

There are cases with extraordinary fees so make sure your attorney explains those to you up front so you know the whole picture!

I have pasted the codes below so you can see the full texts.

-John Palley

### PROBATE CODE – PROB

#### DIVISION 7. ADMINISTRATION OF ESTATES OF DECEDENTS [7000 – 12591]

( Division 7 enacted by Stats. 1990, Ch. 79. )

#### PART 7. COMPENSATION OF PERSONAL REPRESENTATIVE AND ATTORNEY FOR THE PERSONAL REPRESENTATIVE [10800 – 10850]

( Heading of Part 7 amended by Stats. 1996, Ch. 563, Sec. 25. )

#### CHAPTER 1. Amount of Compensation [10800 – 10814]

( Chapter 1 enacted by Stats. 1990, Ch. 79. )

##### ARTICLE 2. Compensation of Attorney For the Personal Representative [10810 – 10814]

( Heading of Article 2 amended by Stats. 1996, Ch. 563, Sec. 27. )

###### 10810.

(a) Subject to the provisions of this part, for ordinary services the attorney for the personal representative shall receive compensation based on the value of the estate accounted for by the personal representative, as follows:

(1) Four percent on the first one hundred thousand dollars (\$100,000).

(2) Three percent on the next one hundred thousand dollars (\$100,000).

(3) Two percent on the next eight hundred thousand dollars (\$800,000).

(4) One percent on the next nine million dollars (\$9,000,000).

(5) One-half of 1 percent on the next fifteen million dollars (\$15,000,000).

(6) For all amounts above twenty-five million dollars (\$25,000,000), a reasonable amount to be determined by the court.

(b) For the purposes of this section, the value of the estate accounted for by the personal representative is the total amount of the appraisal of property in the inventory, plus gains over the appraisal value on sales, plus receipts, less losses from the appraisal value on sales, without reference to encumbrances or other obligations on estate property.

(Amended by Stats. 2001, Ch. 699, Sec. 4. Effective January 1, 2002.)

###### 10811.

(a) Subject to the provisions of this part, in addition to the compensation provided by Section 10810, the court may allow additional compensation for extraordinary services by the attorney for the personal representative in an amount the court determines is just and reasonable.

(b) Extraordinary services by the attorney for which the court may allow compensation include services by a paralegal performing the extraordinary services under the direction and supervision of an attorney. The petition for compensation shall set forth the hours spent and services performed by the paralegal.

(c) An attorney for the personal representative may agree to perform extraordinary service on a contingent fee basis subject to the following conditions:

(1) The agreement is written and complies with all the requirements of Section 6147 of the Business and Professions Code.

(2) The agreement is approved by the court following a hearing noticed as provided in Section 10812.

(3) The court determines that the compensation provided in the agreement is just and reasonable and the agreement is to the advantage of the estate and in the best interests of the persons who are interested in the estate.

(Amended by Stats. 1993, Ch. 527, Sec. 4. Effective January 1, 1994.)

###### 10812.

(a) Except as otherwise provided in this section, if the decedent’s will makes provision for the compensation of the attorney for the personal representative, the compensation provided by the will shall be the full and only compensation for the services of the attorney for the personal representative.

(b) The personal representative or the attorney for the personal representative may petition the court to be relieved from a provision of the will that provides for the compensation of the attorney for the personal representative.

(c) Notice of the hearing on the petition shall be given as provided in Section 1220 to all of the following persons:

(1) Each person listed in Section 1220.

(2) Each known heir whose interest in the estate would be affected by the petition.

(3) Each known devisee whose interest in the estate would be affected by the petition.

(4) The Attorney General, at the office of the Attorney General in Sacramento, if any portion of the estate is to escheat to the state and its interest in the estate would be affected by the petition.

(5) If the court determines that it is to the advantage of the estate and in the best interest of the persons interested in the estate, the court may make an order authorizing compensation of the attorney for the personal representative in an amount greater than provided in the will.

(Added by Stats. 1991, Ch. 82, Sec. 30. Effective June 30, 1991. Operative July 1, 1991, by Sec. 31 of Ch. 82.)

###### 10813.

An agreement between the personal representative and the attorney for higher compensation for the attorney than that provided by this part is void.

(Added by Stats. 1991, Ch. 82, Sec. 30. Effective June 30, 1991. Operative July 1, 1991, by Sec. 31 of Ch. 82.)

###### 10814.

If there are two or more attorneys for the personal representative, the attorney’s compensation shall be apportioned among the attorneys by the court according to the services actually rendered by each attorney or as agreed to by the attorneys.

(Added by Stats. 1991, Ch. 82, Sec. 30. Effective June 30, 1991. Operative July 1, 1991, by Sec. 31 of Ch. 82.)